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In April, 2013, I wrote a post about The Aransas Project v. Shaw, a case involving water management agencies, whooping cranes, and the Endangered Species Act. The defendant water agencies had issued permits for water withdrawals upstream of important whooping crane habitat. According to the plaintiffs, the combination of those permits and the 2008-09 drought reduced freshwater inflows to the estuary where whooping cranes feed, leading to food shortages that killed off large numbers of whooping cranes. Those deaths, the plaintiffs argued, were unpermitted "takes" and were prohibited by section 9 of the ESA.

A federal district court agreed with this theory, but on June 30, the Fifth Circuit reversed. It determined that the district court had failed to apply a "proximate cause" analysis to the take claims. Because the district court failed to apply the correct legal standard, the Fifth Circuit found that it owed no deference to the district court's factual findings. Considering the record de novo, the Fifth Circuit concluded that the water agencies' activities were not the proximate cause of the whooping cranes' deaths.

The reasoning that led the Fifth Circuit to its de novo standard is, to say the least, interesting. In fact, the district court did recite the proximate cause standard, and it did purport to apply it. It just applied it in a way that the Fifth Circuit found overly simplistic. That could be a basis for reversal--appellate courts do review factfinders' factual conclusions for abuses of discretion--but it doesn't seem like a basis for de novo appellate review.

There's also a whiff of hypocrisy in the Fifth Circuit's reasoning. It concluded that the district court had been too simplistic because it had failed to engage with the complexities and contingencies of the alleged causal chain. Perhaps that's a fair critique (for an argument that the district court made a mess of the case, see the comments on my earlier post); I am not familiar enough with the factual record of the case to know.

But the Fifth Circuit's substitute reasoning is also simplistic. Its core conclusion is that "[c]ontingencies concerning permittees' and others' water use, the forces of nature, and the availability of certain foods to whooping cranes demonstrate that only a fortuitous confluence of adverse factors caused the unexpected 2008-09 die-off found by the district court." That conclusion contains a big logical leap, which I don't think is remedied elsewhere in the opinion: it ignores the reality that uncertainty is often a matter of degree. Just identifying some uncertainty within a chain of causation does not mean that the ultimate outcome could fairly be described as "fortuitous." Instead, one must ask how contingent the links in the causal chain were, how much other contributing causes might have added, and how long the causal chain was.

To put it in simple mathematical terms, suppose that event A has a 90% chance of causing event B, which has a 90% chance of causing event C, which has a 90% chance of causing event D. There is uncertainty at every stage of this causal chain, yet the odds of event A leading to event D still are just under 66%. We'd probably be comfortable calling event A the proximate cause of event D. On the other hand, if each event has only a 30% chance of causing the next event, then the odds of event A leading to event D are less than 1%. Contingencies are present in both causal chains, and the chains themselves are the same length. But the causal relationships are drastically different.

Or consider historical examples. One hundred years ago, Gavrilo Princip fired two shots that set in motion a series of events culminating in the slaughter of World War I. In hindsight, history often looks falsely inevitable, yet I suspect most historians would agree that the links between those shots and the horrors of trench warfare in northeastern France were too many, and too contingent, to identify Princip as the proximate cause of the Battle of the Somme. But historians probably will identify the 9/11 attacks as the proximate cause of the U.S. invasion of Afghanistan, even though a contingent causal chain linked those events as well.

The point, again, is that it's not enough to just name uncertainties or other contributing causes, though that's a logical first step in the analysis. We also need to think about how much they matter. And the Fifth Circuit didn't really do that. If it had, the results might have been different. The relationship between permits that allow water withdrawals and actual water withdrawals is pretty direct. So too is the relationship between upstream water withdrawals and downstream reductions in flow. The occurence of a severe drought in 2008-09 was, of course, a chance event, but there's very little chance of Texas avoiding severe droughts throughout the entire duration of a water use permit. The last links in the causal chain--reduced inflows allegedly causing ecological effects to ripple up the food chain, causing whooping cranes to die off--are probably the most uncertain, but reduced inflows damaging an estuary's food chain is pretty plausible, and just labeling that outcome contingent ought to have been the start, not the end, of the analysis.

So how much does the case mean for ESA litigation? The answer, I suspect, is not a whole lot. Even if courts were committed to embracing the gory details of uncertainty analysis, winning ESA section 9 cases would still be a challenge, for the evidentiary burdens plaintiffs face would be substantial. For that reason, plaintiffs don't often try. This latest decision will likely just reinforce that reality.

Back in mid-April I made my first visit to the Supreme Court of the United States, in order to hear oral argument in American Trucking Associations v. City of Los Angeles. I had written an amicus brief in the case, on behalf of a number of national local government associations, and was interested to see how it would go. As one prominent environmental law scholar/practitioner advised me, “There is nothing quite like seeing Justice Scalia sneer at your favorite argument.”

The case is one of an emerging category of market participant exception cases that implicate environmental law and policy. Here, ATA challenged certain aspects of the Clean Truck Program enacted by the Port of Los Angeles. The program was created to allay neighboring communities’ and environmental groups’ concerns about air pollution generated in and around the port by drayage trucks – usually old 18-wheelers at the end of their useful life that transport shipping containers from marine terminals to local railyards, truck depots, and other nodes in the intermodal transport network, for long-distance hauling. These groups had previously held up expansion of the Port through litigation and political opposition. The Port, making a business decision, decided it would be more efficient to address the air pollution than to keep fighting the communities and enviros.

The program requires trucking companies to enter into concession agreements—or contracts—with the Port, which impose a number of requirements on trucks that access port facilities. Two requirements made it through the 9th Circuit and landed before SCOTUS: one requires trucking companies to have off-street parking plans for their trucks, the other requires trucks to post a placard including a number to call to report air pollution problems. ATA’s argument is that these requirements are expressly preempted by the Federal Aviation Administration Authorization Act (which, in addition to deregulating the airline industry also addresses regulation of the trucking industry). The Port’s argument is that the requirements are not preempted because they do not have “the force and effect of law” required under the preemption provision, in large part because they fit under the market participant exception, a doctrine developed at SCOTUS under dormant Commerce Clause and implied preemption cases but never before applied to express preemption under a federal statute. At the risk of grossly oversimplifying the matter: the Port maintains that it is a landlord, operating a business, and that in order to grow its business it has to impose certain limitations on those who enter and use its property.

As you might imagine, the case is complicated. What I found most interesting about the oral argument was how straightforward the members of the Court appeared to find it. To those who spoke, the case seemed to boil down to the fact that noncompliance with the concession agreements could result in misdemeanor charges. The misdemeanor charges, however, under the terms of the Tariff that governs the Port, could only be applied to the marine terminal operator who leases space from the Port and who contracts with the trucking company, and not to the trucking company itself. The criminal penalty is not a term of the concession agreement between Port and trucking company. This fact, though, did not seem to sway the judges from their primary concern: Criminal penalties can only be enforced by the government acting as a regulator. Therefore, any concession agreement that in any way involves the threat of criminal sanction cannot be market participation.

I have two concerns about what appears to be the likely result, here. First, I think the emphasis on the criminal penalty mistakes a practical irrelevancy for a matter of theoretical or doctrinal importance. The Port’s attorney told the Court that the Port does not and would not seek criminal sanctions against a marine terminal operator for a trucking company's noncompliance with the concession agreement. Second, and perhaps more importantly, the existence of the criminal penalties is a red herring. State and local governments acting as market participants are always wielding a power different from that available to private firms, and they are always pursuing different purposes. Their contracting processes are likely to be dictated by law, rather than best practices or personal preference. Their profits are not distributed to partners or shareholders. And, of particular relevance here, government contracts are subject to the False Claims Act and its state analogs, which threaten criminal penalties.

Second, ATA’s lawsuit is a Trojan Horse. In addition to the relatively innocuous provisions at issue in the case, the Port of LA’s Clean Truck Program also includes a mandatory phase-out of old, dirty trucks. Similar phase-outs have been adopted by the Port of Seattle and the Port Authority of New York & New Jersey. The trucking association has not challenged these programs, but lawsuits directly challenging these important initiatives will almost certainly follow quickly on the heels of a decision limiting the market participant exception defense to statutory preemption. Of course, the Court can craft an opinion that avoids doing serious damage to ports’ ability to claim the exception in other circumstances unrelated to the FAAAA, such as under the Clean Air Act vehicle emissions standards provisions. Here’s hoping the Court writes with that in mind.

Over the last year and a half, I contributed a series of essays about my environmental experiences while living in China as a Fulbright Scholar and Visiting Professor at Ocean University of China. A few readers who had missed installments suggested that I create a single post with a roadmap of links to all nine essays. That seemed like a good idea, so with apologies to regular readers for the redundancy, here it is (truly the last of the series):

New Series: Environmental Adventures in China.
“This first post provides some context for my series of through-the-looking-glass observations about what it’s like to plunge into China’s modern industrial revolution as an American environmental law professor....”

CEE #7: Environmental Philosophy - Conservation, Stewardship, and Scarcity. “[Previously], I opened a discussion about how diverging Chinese and American environmental perspectives may be informed by different baselines in our cultural relationships with the natural world. But other differences in underlying environmental philosophy are also important to understand—and as always, some reflect our two nations’ different stages of economic development….”

CEE #9: Post Script: Returning from China to the U.S. “This essay is about the experience of coming back to the United States from China, or perhaps more generally, returning to the developed world from that which is still developing. It mixes deep gratitude for the blessings of the American bounty with queasy culpability over the implications of that bounty for international and intergenerational equity….”

My family and I returned from Qingdao to Portland, Oregon months ago, but the experience remains vivid. As the Year of the Snake begins, we find ourselves poignantly missing our friends and adopted family members across the Pacific. Yet as news reports broadcast apocalyptic levels of air pollution in North China this winter, we are also grateful to be home. This essay is about the experience of coming back to the United States from China, or perhaps more generally, returning to the developed world from that which is still developing. It mixes deep gratitude for the blessings of the American bounty with queasy culpability over the implications of that bounty for international and intergenerational equity.

(Note: To contextualize our experience returning to the U.S., I include photographs depicting our contrasting experiences in China.)

The Long Journey Home Begins. In departing Qingdao, we flew to Seoul, South Korea, then on to Los Angeles, and finally to Portland. It was a long trip, but the transitioning away from China began immediately. Seoul is barely an hour’s flight from Qingdao, but the airport was already worlds away—eerily foreign from that with which we’d become accustomed. Surfaces were shiny and clean (and strangely well lit), as though everything had just been wiped down. Airport shops sold unimaginably expensive perfumes, gadgets, and chachkis. We devoured the best sandwiches we have ever had in our lives from a Quizno’s free-standing cart in the middle of the airport corridor. We didn’t speak for the entire meal; we just savored the fresh lettuce, tomato, and avocado.

Indeed, when we got home, the first thing we did was ate.
And ate and ate and ate.
Especially fresh fruits and vegetables! Strawberries. Raw spinach. Fresh-squeezed orange juice. I have had a bowl of grape tomatoes on my kitchen counter every day since we got home, replenished like an open candy bowl. Pesto, chevre, basil… flavors that have never been so missed. Whole grains. Sourdough. Bread baked in my own oven, after a year in which nobody we knew even had one. Tollhouse cookies, donuts... my son has eaten a bagel every morning for months and they have not begun to lose their allure. We knew that our Chinese friends return from the U.S. with exactly the same desperation for their own food culture, but that didn’t alter the joy of our own reunion.

And I should note that despite this overly indulgent reunion, I was intensely aware of no longer being the fattest person in every room that I occupy.

On our second or day back, I went grocery shopping with my four-year old son. I was mentally prepared for how psychologically fraught this might be. I had often heard tell of the experience from the other side—what it was like for Chinese and other foreigners to walk into an American supermarket for the first time. I knew it would be overwhelming, with fifteen brands of nearly identical peanut butter and every possible signal of over-consumption. I believed that knowing this would steel me for the experience, but I was wrong. I walked in with my son and within seconds I felt dizzy and confused. Everything was so sterilized, and there was just so much of it all. No animals roaming around or strung up on a rack, but so much light and color and so many brands... So much electronic activity, so much everything.

I dropped something, and I froze in my tracks like a crashing computer, because I couldn’t figure out whether to pick it up (the correct response in the U.S., to avoid littering) or leave it on the ground (the correct response in China, where things that have touched the ground should not be touched with clean hands). It was all I could do to lead my baffled son back out the door and collect myself on a nearby bench.

I shut my eyes, centered my breathing, and considered how much we wanted those strawberries. And then, after just a moment’s recovery, I weirdly just walked back inside and went shopping. Like I had never left. In fact, I knew exactly what to do. I plucked a sani-wipe from the dispenser, cleaned the handle of a shopping cart, plopped my son in the front, and roamed the aisles collecting milk, toilet paper, and just the right brand of peanut butter. Suddenly, it wasn’t so strange after all.

Which became its own haunting experience: was all this excess really my personal norm??
So help me, it was. This was my normal, and normal for everyone else now around me, auto-piloting through this most basic American chore. But why didn’t they know how abnormal it really was? Don’t they know what the rest of the world eats and where they find it?
That most people alive today (or at any time in history) could never imagine a place like this? Why aren’t all these people moving distractedly around me more upset about the imbalance, the gluttony, the unfairness of it all? Why are they just walking around like there’s nothing weird at all about any of this at all, when EVERYTHING about it is completely bizarre?

Strangers in Our Own Land. Navigating the rest of our renewed American lives continued along the same strange lines of being simultaneously refreshing and disturbing.

It was hard to get over how clean the world suddenly seemed. Like a movie set, because it couldn’t really possibly be that clean. The streets and houses are clean. The air is brilliant; sweeter than I had imagined.
Colors seem brighter because the air is clean, without the billowing Chinese particulates that dull the visual edges of everything in sight. We revel in immersing ourselves in a bathtub once again, and running the clothes dryer is a guilty pleasure.
Our clothes no longer smell like air pollution, inevitable as they hang to dry amidst those plumes of particulates.
But of course, running that American clothes dryer is probably adding greenhouse gases to the atmosphere in ways that rival particulate pollution.

There is not so much litter here in the U.S., and not so much dust. We were amazed to discover that our house had less dust on its surfaces after having been left alone for an entire year than we experienced on a daily basis in China. (No exaggeration: our East China home dusted in the morning was saturated again by evening. But then again, we all know what dust is mostly made of—dead skin cells. There are more than a billion people crowded along China’s East Coast; you can do the math.) Nature in the U.S. is spectacular. The grass really is greener; the sky improbably blue. The moon is no rounder in America (as the Chinese sometimes joke it must be), but here you can find the man in it. And yet we also have to remember not to look directly at the sun, as we so often could in China.

This was a hard lesson for my son, who had become used to gazing openly upon that smoky, blazing orb in the sky. But oh, how his eyes lit up to once again play in a public playground—that monument to the carefree, whimsical freedoms of childhood! We never once found a children’s playground in China (at least one that wasn’t gated into the grounds of an expensive private school). And in his own preschool yard, the children were required to follow a prescribed order of activities, one at a time, during outdoor play: up the rope ladder, down the red slide, and then back in line, single-file, to wait your turn for another chance.

My son loved his Chinese teachers, who could not have been more loving or patient with him, and he gradually adjusted to the controlled style of Chinese schooling. But back in Portland, we enrolled him in a local Montessori preschool, where learning activities were largely self-directed. At first, the teachers didn’t know what to do with his hesitation to act independently. “He asks permission to do everything!” one said, openly exasperated, “I’ve never seen anything like it!” After I explained the up-the-rope-ladder, down-the-red-slide nature of his previous experience, she began to better appreciate the depth of his transition. And perhaps more about the infinite cultural differences that follow from these deeply contrasting starting points.

Cultural Pride and Cultural Shame. Public safety and sanitation is different here. It took a while for us to trust that cars would truly stop for us in crosswalks and were not likely to pull up and park on the sidewalk we were walking along. I’m happy to no longer scour medical offices for unclean surfaces and unsterilized needles, as I had learned (the hard way) to do in China. I no longer worry about giving my child medicine when he is sick. That said, after a year of regularly assuring our Chinese friends that not every American owns an assault rifle, we returned directly to the Clackamas Town Center mall shooting that took place just a few miles from our home, and then the unspeakable tragedy in Newtown. I have never been more speechless, and so filled with national shame, trying to explain these events to some former Chinese students studying abroad here.

But there are also moments of immense cultural pride. I cannot boast enough about American tap water,
with which we are all hopelessly in love.
Drinking directly from the sink never gets old, and Oregon water is especially heavenly. My husband’s workmates found him drawing a mug from the bathroom faucet and reminded him that there was a filtered cooler somewhere in the office—and he laughed until he almost cried. We now understand that there is nothing in the world better than lukewarm, reliably running, municipally treated American tap water. Nothing! (And we need to do better to protect this hard-won feature of modern American life against backsliding regulation that would endanger it.)

Still, it has been confusing for me to wash dishes and water plants with this perfectly potable water. It feels excessively wasteful. It boggles my mind to see people using it to sprinkler lawns and wash cars. “No, no,” I think, “are you crazy? You could drink that!” But here in the U.S., all water that flows from a municipally-linked faucet is treated to be drinkable—even what gets used at the carwash. Which is obviously insane, especially in the arid West. I hope Americans will come to understand how incredibly fortunate we are to have drinkable tap water, before we end up not having it anymore.

At Home in America. Our neighborhood is lovely with trees and grass and wildlife, but strange with people. It’s weird the way we all drive to our individual houses, press the button on a garage door opener, and then drive into our homes without ever even getting out of the car. If you don’t walk a dog, it’s easy to never see neighbors face to face. In China, families take purposeful neighborhood walks after dinner, where they see friends and spontaneously mingle with strangers.
Public spaces are alive with community in China, but here, we are much more isolated. We live close to our neighbors, but with little random interaction. With Tivo and Pandora, we don’t even partake in the same real-time broadcasts—no longer united in this last vestige of shared experience.

Americans are so alone, my visiting Chinese students tell me from their disbelieving vantages points. Public spaces are so empty by comparison. The country is so empty, with vast unpopulated tracts of land. “And I am so lonely here,” they almost always say, anxious to return to the thick sense of community they left behind. One student has his own room for the first time in his life—and he hates it. There is nobody to talk to. Nobody to care if you are even there or not.

While adjusting to being back in our own house—and as a reaction to how careful we were about not eating anything that had been in contact with anything that had been in contact with a floor—we became unreasonably nonchalant practitioners of the “five second rule,” to an indefensible extreme at first. But after eating and breathing for a year in China, we returned with the impression that it didn’t really matter what we put in our bodies anymore. A little dirt won’t hurt, we tell ourselves; how bad could that floor really be? (There’s barely even any dust!) And for that matter, why bother with organic? Why sweat the preservatives? After our year abroad, we have been fully absolved of the illusion that our bodies are temples.

But our house—goodness gracious—is ridiculously, shamefully big. I was deeply embarrassed when my Chinese students came to visit us in December. I wanted so much to host them here, while they were alone in a strange land and unable to be with their own families as Americans celebrated unfamiliar holidays.
But at the same time, I cringed at the thought of showing them where I live. I didn’t want them to think about what it represents, in terms of the differences in our lives that were invisible while I lived in the boxy Chinese apartment
in which my own family members nearly killed each other for lack of personal space, and which was about twice the size of the apartments that my students lived in with their families their entire lives. True enough, their eyes nearly left their heads when they arrived, and I somehow managed to never show them the master bathroom.

That said, I have never loved a material object more than I love my own oversized, coil-spring, pillow-top, all around over-the-top American bed now that I am back in it. It is soft, and it doesn’t hurt my bones the way every Chinese bed I slept in did while we were gone. I returned from China with bursitis in my hips because Chinese beds are so hard. But it isn’t just my American bed that has me in thrall: here there are comfortable chairs, with back support and arm rests. There is wall-to-wall carpeting, with padding beneath. On my first day back, I sank into the family couch and realized with astonishment that it had been a full year since I’d been physically comfortable. Embarrassingly, my body wilted into the cushions like a crying child to her mother. My fallen arches stopped screaming about the constant concrete floor underfoot.

Of course, this too is purely a matter of culture. One of my visiting Chinese students confessed that he had been sleeping on the floor since his arrival in the US because American beds are all too soft. Everything in the US is so unbearably soft, he complained—even the floors are soft! “Why are Americans so soft?” he asked innocently, honestly unaware of the gravity of his question.

Freedoms for Granted. The night before we left Qingdao, I stayed up past midnight with some of my favorite students talking about everything we could fit in before my departure, everything we hadn’t spoken about yet. Tiananmen. Terrorism. When NATO accidentally bombed the Chinese embassy in Serbia during the Clinton administration. What our parents tried to teach us about our roles in the world.

My students told me that the number one message their parents had tried to impart to them was to stay out of trouble: keep your head down, don’t stand out, don’t call attention to yourself. In the wake of Tiananmen, these were survival instructions.
They described how their parents lovingly prepared them for their world by teaching them to disappear as much as possible into the background.
Then they asked me what my parents taught me while I was growing up. I answered hesitatingly that my parents had raised me to never be afraid, to believe it was my responsibility to speak out, to stand up for what was right, and to change the world if necessary. We collectively stared at each other from across this enormous gulf of cultural experience, with both affection and amazement, as the significance penetrated.

In the air between Seoul and Los Angeles, while scribbling purposely vague notes about these conversations, it suddenly occurred to me that I no longer needed to be so vague. I could write freely. I didn’t have to be purposely ambiguous about connecting names with events or statements. I could make full sentences rather than mnemonics. For the first time in a year, I didn’t have to worry about my notes being found by uninvited visitors to my apartment, as I’d been warned to possibly expect at our orientation in Beijing. I didn’t have to worry, as I had meticulously done all year, that the details I recorded would bring trouble for my friends.

I had the same experience during my first telephone conversation with my sister (a sibling—so un-Chinese!) on arriving home. After a year’s worth of careful email and skype communication, always aware that what I had to say could be unintentionally interesting to someone other than my intended audience, I could suddenly speak freely. My Chinese friends had warned me to assume that my phone calls in China were not private, and I experienced at least one clear instance of intercepted email. But now, nothing I said could hurt anyone anymore. I could relax! But no, I couldn’t relax. It took a long while for me to shed the feeling of carefulness that must be part of the fabric of communication for many Chinese.

Between Worlds. So yes, the paradox of our homecoming has been this disjuncture between feeling so at once lost on return and like we never left. Supermarkets aside, it was remarkably easy to rejoin American culture. Just as one never forgets how to ride a bicycle, it turns out that I had no trouble at all remembering how to drive a car, even after my year as a passenger (in a culture with unrecognizable traffic rules). I knew how to use a credit card, seek directions, and chat idly at the checkout line—at just the right level of detail, and for just the right amount of time. I knew how to watch television, program the remote, read the news, operate a dishwasher, cook in an oven, and do all the other things I had not done for the full year away. I knew how to operate American culture like an expert. It was easy to return, seductively comfortable, and mercifully welcoming to one already on the inside.

Yet reverse culture shock sneaks up on you. A few weeks after we got back, I fell into what I can only describe as a brief but intense depression. I had heard that culture shock on return could produce something like this, and I figure that’s what it was, because it seemed untethered to anything else I could point to. I was delighted to be home in my soft bed and comfortable chair with my candy bowl of grape tomatoes, breathing fresh air and drinking tap water, using my clothes washer and dryer. Reasonable expectations of privacy, food and drug inspection, pedestrian safety, political freedoms—hallelujah, we were home!

But these were guilty pleasures, most, because of course life is nicer in the first world. Back now to that dizzy place. How to feel about all this?
What about those we left behind?
So strange to have worked so hard to find a way to fit in to this vastly different country—to penetrate the language, politics, and cultural traditions beneath the surface most tourists encounter—and then to just seemingly leave it all behind.

Then again, I know I’m not really leaving it all behind. Each of us will remain a bridge between the two cultures in our own ways—me as a teacher and scholar, my husband in his own career, my mother in her study of Chinese poetry, and my son as a child of two worlds now.

Indeed, in the weeks after we returned, my son spoke Chinese fluently and frequently, confused when his efforts to engage strangers in Mandarin failed. As time wears on, his moments of Mandarin are fewer and farther between, even though I take him to a Saturday afternoon class for children at the local community college. As the Year of the Snake began, he proudly adorned the scarlet New Year’s suit that our Chinese friends had given him at Spring Festival last year. He was so proud to be Chinese again, if only for the day.
The next day, he was happy to be an American again, romping freely around the neighborhood playground.
So yes, he is a clearly a child of two worlds now.

Last week, Holly Doremus and Dan Tarlock posted Can the Clean Water Act Succeed as an Ecosystem Protection Law? on SSRN. The article, which is forthcoming in the George Washington Journal of Energy and Environmental Law, examines the efficacy of the Clean Water Act's water quality standards (as opposed to its technology-based controls) as legal mechanisms to support ecosystem protection. The authors use California's Bay-Delta ecosystem as a case study. Their conclusion, based largely on the failures of Bay-Delta restoration efforts, is that the Clean Water Act will not reach its potential without significant reform.

There's lots of good stuff in the article, including, at the end, an ambitious vision for comprehensive Clean Water Act reform, but one passage in particular raises some intriguing questions. Here's the passage:

In legal and institutional terms, we view the Bay-Delta as a "best-case" scnario for the CWA. California, unlike some other states, is a willing partner in ecosystem protection. EPA has historically been more willing to push its authority in the Bay-Delta than elsewhere, and recently announced that, in concert with state partner agencies, it is considering what steps it can take to better protect Bay-Delta water quality. State law fills some of the most important gaps in the CWA. Furthermore, the state agency which implements the CWA and the state's analogous water quality law also implements the state's appropriative water rights system, providing institutional opportunities to integrate management of water quality and water quantity. The state's courts have pushed the agency in that direction, ruling decades ago that water rights can, and indeed must, be adjusted if necessary to protect water use.

That's all quite true, and it's all unquestionably important. But I wonder if the geography of water use also plays a crucial role in determining what counts as a best-case scenario for CWA implementation. Here, it seems to me, the Bay-Delta restoration efforts may face two huge challenges that aren't always present.

The first is that very few of the people who rely upon Bay-Delta water have any real contact with the Bay-Delta as an ecosystem. That means they may not perceive any direct benefit from environmental restoration, or even find the alleged problems readily cognizable. While it's a hard point to prove, I think that geographic separation does matter. In a recent study of a much smaller-scale ecosystem restoration project in Maine, I found that many business leaders were receptive to a CWA-driven restoration project in part because they lived in (and, in many cases, tried to draw customers or employees to) the larger ecosystem affected by the project. That attitude had legal significance: the willingness of the business leaders to support restoration efforts allowed regulators to craft an innovative permitting regime, and the absence of lawsuits from regulated entities allowed that regime to quickly go into effect.

The second potential challenge is scale. We sometimes tend to assume (at least I used to assume) that in larger, higher-profile projects like the Bay-Delta restoration effort, the influence of environmental advocates will be at its peak, and that, as a direct consequence of that advocacy, the government agencies responsible for environmental protection will be most likely to assume an aggressive posture. Certainly there has been quite a lot of environmental group advocacy focused on the Bay-Delta. But it's quite possible--some of my recent research has me wondering if it's likely--that environmental protection measures are often stronger in smaller, lower-profile controversies. There, the influence of environmental groups may be reduced, but the influence of resource users may also be significantly reduced, leaving government regulators as the most powerful influence. And if those government regulators have an internal commitment to environmental protection--in other words, if they're not just the external pressure-driven automatons posited by some more extreme versions of public choice theory--the reduction of outside pressures might lead to more protective outcomes.

All of this is rather hard to put to the test. But at the very least, we have more case studies unfolding. Most notably, EPA is now seriously attempting, on a scale as grand as that in the Bay-Delta, to use the Clean Water Act's water quality provisions to drive Chesapeake Bay restoration. Similarly, across the country, a smattering of smaller-scale water quality-based initiatives continue to unfold. Perhaps in another ten years, those efforts will give us more insight into what makes a best-case scenario for CWA-based ecosystem restoration.

This is the third in my series of reports from the field about the environmental experiences of an environmental law professor in China. (For the full background on this series, see my introductory post and last month’s reflections on China and the RockyMountain Arsenal.) It has been a busy month since my last post, during which I’ve had the pleasure of traveling the country widely. Today I actually write from Japan, where I am visiting Nagoya University to discuss the role of the common law public trust doctrine in balancing economic development and environmental protection.

It is a lecture that I have given frequently in both the U.S. and China, and before arriving, I had carefully considered the differences I could expect in sharing the same ideas with a Japanese audience. In the U.S., law students are fascinated by the role of legal institutions in mediating the conflict, especially demonstrated in the Mono Lake litigation around which I build the presentation. In China, students are more interested the factual content of the story—and dumbstruck by the idea that protecting birds, fish, and wilderness could possibly compete with the water needs of a large metropolis. What would I find here in Japan, a nation with relatively thorough pollution controls but comparatively scarce natural resources?

As it turned out, I needed no academic encounter to see where the Shintoist-inflectedJapanese approach would differ from China’s. All the evidence I needed—evidence that nearly knocked me off my feet from the moment I first stepped outside—was in the air. The clean, fresh, sweet-smelling, healthy-feeling air. After eight months of breathing in China, the air was so beautiful that I almost cried. There was no haze, no taste, no grit. You could see the world crisply and clearly ahead of you for miles—even better than I could recall from home in the U.S. I realized in that moment how much I had forced myself to forget what this could be like, in order to just get on with daily life in China. But like an elephant, the lungs never forget. So I guess it’s time to confront the great elephant in the room of Chinese environmental issues and talk about the experience of living with China’s notorious air quality problems.

Everyone knows that air pollution is a serious problem in China. The World Health Organization reports that some 700,000 Chinese people die each year from air-pollution related respiratory diseases. Many of the world’s most polluted cities are in China, and we took serious account of this reality in contemplating our Fulbright voyage. In Beijing, particulate pollution levels regularly exceed the scale that the U.S. government normally uses to monitor it (such that air quality problems are quite literally “off the scale”). Shanghai air is a little better, but still far worse than the worst air quality days in the worst air quality years of Los Angeles’ experience. A friend at the U.S. Embassy in Beijing reports the common wisdom there that a bad day in Los Angeles can get as high as 90 on the PM 2.5 particulate pollution scale, while a bad day in Beijing can exceed 400 (and occasionally even tops 500). He says "if it's less than 150, I'm usually happy, because then I can see the sun." (For full comparison's sake, in 2009, the average PM 2.5 particulate pollution level for the entire U.S. was just under 10, and the average in Los Angeles was just under 15.) The State Department actually pays the American embassy staff in Beijing “hardship compensation”—extra pay for enduring hazardous working conditions, just by virtue of breathing there. [For a good-day/bad day photo comparison, see this follow-up post.]

And foreigners aren’t the only ones concerned. In recent months, the people of Beijing witnessed an important demonstration of their own political power when public unrest ultimately persuaded the Chinese government to change its air quality monitoring norms. For years, China had monitored only airborne particulates measuring at least 10 microns across, even though it is the much smaller particles that can do the most damage—passing through the alveoli in the lungs directly into the blood stream. The U.S. embassy inBeijing monitors particulate matter as small as 2.5 microns (PM 2.5) on an hourly basis, and had been making the data available to the public over the Internet. So the Chinese air quality reports made air quality problems look a lot less serious than the American reports.

But this winter was worse than usual—much worse. The U.S. Embassy data showed sustained levels of seriously hazardous pollution—the kind that could harm any healthy person, not just the especially sensitive young, old, or sick. Air filter sales surged in Beijing, and residents donned surgical masks in (mostly futile) efforts to reduce their inhalation of choking auto exhaust, coal-fired power plant and manufacturing emissions, and dust from the ubiquitous construction projects and nearby Gobi desert. A New York Timesreport that managed to jump the Great Firewall told of some Party officials who had retrofitted their homes with equipment to cleanse the toxic air, infuriating the 99% who had to breathe it without recourse.

As public agitation mounted, the Chinese government reportedly requested that the U.S. Embassy stop publishing its PM 2.5 monitoring data (likening it to inappropriate meddling in domestic affairs). Beijing residents were enraged by these purported efforts to keep them in the dark about genuine threats to public health. In the Twitter-like microblogs that dominate the Chinese blogosphere, one after another vented their outrage—mothers wanting to keep young children inside when the air was most hazardous, sons wanting to keep aging mothers at home on the days of elevated stroke risk. In a stunning victory for transparency in Chinese governance—and an important signal of how seriously average Chinese people are taking air quality—the government reversed itself and finally began monitoring at the PM 2.5 level.

In fact, I had been graciously offered connections to some of the nation’s leading universities in Beijing when my Fulbright placement was being set. But given Beijing’s air problems (and with memories of my son’s respiratory complications from swine flu still fresh in mind), we pursued a placement in the coastal city of Qingdao instead, as much for the city’s famously clean air as for Ocean University’s vibrant environmentallaw program. And indeed, when we arrived in August, the wisdom of our choice seemed confirmed. Our introductory week in Beijing—while culturally thrilling—was environmentally chilling. None of my ample armchair research into Beijing’s air quality problems prepared me for the experience of actually breathing air with physical heft. Air with taste and texture. Air that we knew—our bodies as physically as our minds did intellectually—would eventually make us sick. We were elated to finally get to Qingdao, where indeed, the summer air was comparatively pristine.

But even in Qingdao, everything changed in late November, when the heat went on in northern China. In China, the heat (like most else!) is centrally coordinated. So the heat for the entire northern part of the country goes online around November 15th, bringing to life the countless coal-fired power plants that freckle every city landscape, some large but many quite small. One such sleeper turned out to be directly across from my son’s preschool. Its curiously squat smokestack was coupled with a more slender companion, both raised just above the higher floors of the surrounding residential apartments. They seemed old and apparently unused in the fall, so we had assumed it was an old factory abandoned after residential infill. Once we realized that it was really an eye-level conduit for mercury-laden, throat-choking coal dust, we panicked considered our alternatives. But the truth is that these little generators are everywhere. So many, so little, that installing appropriate scrubbers would require the kind of massive financial commitment currently beyond reach for most developing economies.

It’s easy to cite the mind-boggling statistics of how bad the air quality can get here. It’s hard to describe the actual experience of it. Harder still to endure it. There is a kind of low-level panic that sets in when the air begins to go bad. You hope against hope that this time will not last as long as the last time, and you unconcsciously start to breathe more shallowly. Then you assume a bunker mentality and try to keep the bad air out of your home as much as possible. You close all the windows and become extremely careful about closing the doors as fast as possible when you come and go from the apartment. You have to give up the charade when you leave for work, but eventually it doesn't matter because the bad air eventually finds a way into every room. In large enclosed spaces like airports, the haze can even obstruct your view of the far interior wall. At this point, you just have to submit to the situation and try not to think about what's actually in the air. There is nowhere to go, nothing you can do to avoid it. But you still try not to breathe too deeply.

After the winter heat went on, the blue skies of Qingdao disappeared behind a grainy haze of automobile fumes and coal plant smoke. On the worst days the weather report is simply “smoke,” and breathing is like inhaling in the wake of buffed chalkboard erasers that have been tainted with some kind of chemical. We use packing tape to try and seal the faulty window frames and the gaps around our doors. Surfaces in our home are perpetually coated with once airborne dust and particulates. We are no longer so keen to take walks to the lovely mountain behind the university (which we very often can’t even see, as in the prior photo). We avoid strenuous exercise—even running to catch the bus—because deep breathing hurts. On days when we can only hazily see the building fifteen meters from our own (and the others beyond disappear fully into the smoke, as in the photo below), we try to not even leave the apartment.

In the early days of winter, the stress of adjusting to the air pollution was oppressive. We felt sick most of the time, and were always anxious. Eventually, we adapted to the circumstances and we were once again able to find joy and fascination in our new world. But even now, we finish most days by lying down in bed to cough the day's residue out of our lungs. And on many mornings, I wrestle with the decision to send my son to preschool, which requires both him and my mother to troop a half-mile up a steep hill directly toward the belching power plant.

In fact, when the EPA announced the new mercury rule that it finally promulgated in late 2011 after twenty years of trying, I metaphorically jumped for joy and then literally wept with grief when it forced me to connect the primary source of U.S. mercury—coal-fired power plant emissions—with our own experience here. I thought of all the environmental risks to which we are subjecting my little boy, who turned four here this winter. So ironic, after all our fastidious caretaking in his first three years (organic milk, physician-approved sunscreen, no cigarette or pesticide exposure, etc.)! What was the point, when we are now subjecting him to more hazard than he may experience for the rest of his life? Almost every day in January, I questioned whether I did the right thing bringing him here. About every other day, I was pretty sure that I didn’t.

Then again, we take the objectives of our cultural diplomacy here very seriously. Raising a child here has enabled us to access a depth of Chinese culture that most visitors never come close to understanding. We understand China in a way we never could have imagined before now, and we have shared our American ideals just as profoundly. At the moment, my son is a living bridge between our cultures, in a way that fills our neighborhood with joy and hope for the future of our nations’ friendship. So I tell myself that the air pollution is really very temporary for us, and that we will come home in just a few more months. (And then I wrestle with the guilt of knowing that all the people I’ve come to love here will not have the same luxury.)

Seriously folks—I’ve said it before, and I’ll say it again—every American bellyaching about the costs of environmental regulation in the United States really needs to spend a year living in China. Especially from this vantage point, the proposition that Americans no longer need so much environmental law because our environment is so clean (thanks, of course, to environmental law…) makes me want to break something. I try to muster some empathy for those making this argument, because they obviously have no perspective on what the lack of meaningful environmental regulation would actually mean for their daily lives. Which is why they should come to China for a while—preferably with their small children and aging parents. (Then we’ll see how much they miss the EPA!)

Here in Qingdao, without the benefit of enforced environmental regulations, we have learned simply to pray for cold weather. The northerly winds from Siberia blow the smoke out to sea and provide a day or two of respite, so bitter cold is our new favorite forecast. In fact, Qingdao’s famously clean air is probably a result of this standard winter weather pattern—but the weather patterns here shifted this year, as they have been doing all over the globe. Whether for reasons of climate change or unknown factors, the winds that once regularly purged Qingdao’s smog barely blew this winter, and air quality plummeted accordingly. In just the first three months, bad air quality days already exceeded the previous year’s by 400%. Qingdao residents have complained bitterly about the problem, even prompting some new local regulations. But as one of my students wryly observed, “would they rather their homes have no heat?”

In fact, northern Chinese winters get very cold, and most of our Chinese friends easily prefer the heat with all of its downsides. But we should also give credit where it is due for the many ways that Chinese people avoid making the problem even worse—by not living the way that most Americans do. For example, the roofs of all Chinese buildings are barnacled with rows and rows of solar water heaters, avoiding the need for yet more coal-fired electricity. The taxi fleets all run exclusively on natural gas, and city public transportation is exceptional—cheap, easy to use, and everywhere. Almost nobody here has an electric clothes dryer, among the most notorious energy hogs in the American household. Some fear this may change for the environmentally worse as 1.4 billion Chinese get richer and more interested in exotic appliances—but Japan has a fully developed economy, and line-drying remains the norm there as well. Finally, China appears to have made a serious national commitment to reducing greenhouse gas production in its Twelfth Five Year Plan, now beginning implementation in the seven largest metropolitan areas. (Perhaps in the meanwhile, they can work on small coal-plant scrubbers.)

Anyway, we are now counting down the days until the heat finally goes off on April 15th. What seemed unendurable in the first few months eventually became routine, such that the days we once barricaded ourselves inside are now days that I will (if reluctantly) take my son outside to play. We say things like, “the air is bad today, but at least the chalk dust doesn’t have too much chemical in it.” For better or worse, we have adjusted to our new environment—fully appreciating that it is still better than most Chinese enjoy. After November 15th, I alternated between horrified, angry, and desperate that I had submerged my family in the very sort of environment that I had pledged my professional career to avoid. I still have all of these feelings at times, but the desperation has mostly given way to determination. What environmentalists do is important. (Indeed, even the Tsingtao Beer Museum includes a display about environmental protection efforts tracing to Rachel Carson's Silent Spring.) What environmental scientists and lawyers do is important. What environmental law professors do is important. Keep doing it, everyone.

As I explained in a previous post, this year I am blogging about my environmental experiences in China, where I am spending the year as a Fulbright Scholar at Ocean University in Qingdao. In this series, I’ll describe what it’s like to live in a rapidly developing society without effective environmental regulation of air, water, and product safety—but also those environmental realms in which the Chinese surpass American efforts, including public transportation, overall consumption levels, and the national commitment to encouraging cultural change toward a “recycling economy” (while Americans argue about teaching climate science in schools). (For the full background on this series, see my introductory post.)

But as this blog speaks directly to environmental law professors, the first story is one that clutched at my heart while teaching Natural Resources Law in my first semester here. Teaching environmental law and policy here is, as you would imagine, endlessly enlightening. Environmental decision-making in the U.S. proceeds from very different underlying assumptions than those most prevalent in China. So it was fascinating to begin class the way I usually do, probing the conflicting assumptions about the goals of natural resources management that make the enterprise so challenging in any context.

As many of you probably do as well, I especially like to raise these issues through the Rocky Mountain Arsenal discussion problem posed by environmental historian Bill Cronon (in Uncommon Ground: Toward Reinventing Nature) and nicely excerpted in the Rasband, Salzman, and Squillace NRL textbook. (Attached photo by Oborseth, with Creative Commons license.) This compound outside of Denver was left so toxic after decades of manufacturing mustard gas, napalm, and other chemical weapons that it was completely sealed off from human contact for years after its closure in 1992—a respite from human intervention during which it evolved into the nation’s “most ironic” wildlife refuge. Wildlife driven out of the developing Colorado front-country was finally able to establish undisturbed habitat in the arsenal, notwithstanding its toxic soils and contaminated waters. If the frogs had five legs, at least those frogs had wetlands to live in.

After sharing the story with my Chinese students, we debated the questions posed by Cronon and the textbook authors—how would you best manage these lands in accordance with nature? Would you initiate the massive disruption required to decontaminate the very earth underfoot, even though it would likely displace (and kill) a lot of wildlife? Or should you leave the five-legged frogs alone to live out their happy if shunted lives, peacefully unaware of the toxic soup in which they live? This began a lively conversation with the class that continued pleasantly and provocatively for months.

But over those same months, several of these students also became involved in my family’s experience of navigating the environmental challenges of our new life in China.

A few were there on the day that we arrived in Qingdao, helping us move into our new apartment. There were huge flakes of paint peeling from every wall, window, and doorway, collecting in piles on the floor no matter how often swept, beckoning my three-year-old like so many giant, lightly-sweetened corn-flakes. My very first question to the student in charge, an environmental law major with impeccable English, was whether I should worry about lead in the paint. “Why?” he asked. But even translating the problem into Chinese (and noting the established problem of lead paint in some Chinese toys) didn’t quite convey my concern. He assured me that children all over China grow up without incident in identical apartments with the same kind of paint, whatever it was. (Between this and the fact that the bathroom drain piped dirty water directly into the kitchen tap, we did not last there long.)

Several students traveled with me on congested area highways on days when I was overcome with the fumes of auto-emissions to which they were so accustomed that they didn’t even notice. Many times, on days thick with foul-smelling cloudy air, they assured me that Qingdao is a coastal city, and that this was just fog. Having lived in coastal cities most of my life, I am quite familiar with the difference between fog and smog. Fog is wet, I would say, and it doesn’t sting your eyes or your throat. “You feel this in your eyes?” they would ask, incredulously. I would later discuss EPA’s new Mercury Rule with a group over lunch, touching on its significance for coal-fired power plants. None had ever heard of the relationship between coal-fired plants and mercury, even though we could see three belching furiously into the air just from where we were sitting. Chinese coal doesn’t have any mercury, one assured me.

Others were on hand when our (second) apartment became infested with insects that ravaged us at night until my son looked like a smallpox patient for all his sores. The bites were so intense that bitten fingers would swell and go numb for hours at a time, preventing us from sleeping at all. After two weeks, we were so obviously exhausted and haggard that even my students were anxiously trying to help resolve the problem. And the solution was so obvious to them: just douse the apartment with successive rounds of pesticides as hard and thoroughly as possible until whatever was preying on us was gone. They contacted the building manager to explore options for beginning the process immediately, and secured a promise to do so. The solution was so simple that they were astonished by our polite but strident refusal to allow it.

Although we were desperate to be rid of the pests, we were even more concerned about the potential poisons used to eradicate them. Indeed, one of the hazards of being an environmental law professor is knowing a little too much about the hazards environmental laws are designed to prevent—such as the neurological consequences of organophosphate exposure. We had already puzzled everyone by declining to use the standard pesticide aerators that most Chinese use to kill mosquitoes, opting for minor suffering over the unknown consequences of an inhaled pesticide that we couldn’t research in English. We knew about some very dangerous Chinese chalk pesticides that are especially harmful to children, but we couldn’t evaluate the safety of those being offered to us now. After my son experienced some unusual neurological symptoms as an infant, we had avoided even American pesticides regulated for consumer safety, and this just didn’t seem like the time to shed precautions. But how to explain this to our kind hosts, for whom pesticides are a regular, widespread, and unquestioned part of life?

I finally just had to acknowledge that our behavior probably seemed completely unreasonable to most Chinese people, who would easily opt to fumigate and forget. I said a little bit about my son’s special medical history and explained that we were probably even more cautious than the average Americans. But I also noted the concerns raised by public health advocates around the world about the negative consequences of introduced chemicals in the environment, especially on young children. I explained the care that many American parents increasingly take in limiting the early exposure of their children to potentially dangerous substances in pesticides, cleaning products, and even plastic baby bottles.

In the end, with a little creativity and help from our friends, we were able to find some non-toxic solutions to our pest problem. But a few days later, one of my favorite students came up to me before class to say that he had continued to ponder the pesticide situation—and the eye-stinging air, and the peeling paint. This was the same student who had assured me not to worry about lead paint in the first apartment, and one of the many who regularly assured me that the cloudy air was coastal fog. “I cannot stop thinking this,” he said. And then in hushed but earnest tones: “China is the Rocky Mountain Arsenal, isn’t it?”

My jaw slowly dropped as I tried and failed to form words. He looked at me steadily, with an intense but quiet pain behind his eyes. I hated the comparison between China and a toxic dump. I especially hated it from this brilliant student, so proud of his country’s accomplishments and protective of the many ways that it differs from mine. But he persisted: “Not perfect comparison, I know, but really, the same basic situation, right? Environment is fouled, and we are like those frogs. We don’t even know it, do we? That we live in a toxic world?”

Still speechless, I nodded gently, to acknowledge the part of the comparison that tragically held some truth. Then I mumbled something semi-coherent about the same problem happening worldwide, and I politely turned away to ready my notes for class (but mostly so that he would not see me brush away the wetness from the corners of my eyes).

The pain behind his broke my heart. He was right, of course (and to some extent, his observation holds true for all of us). But in that moment, the last thing I wanted was for my teaching to make him feel ashamed of his country, or betrayed by his government, or panicked about the future—or, really, anything other than just a little more educated than he had been the day before.

But he is that much more educated, and this I did come to do. I am here to teach American environmental law, and in so doing, I find myself surprisingly torn. In sharing with my students some of the ways that I see the world, I necessarily force them to see theirs a bit differently, and it is not always for the best. To be sure, our educational exchange works in both directions, and that student reminded me that all of us are living in the Rocky Mountain Arsenal in varying degrees. But the Chinese students with whom I spend the most time no longer believe that the cloudy air is fog, and I am sad for them that they will now worry for their children in a way that their neighbors won’t. They will worry about mercury poisoning and lung cancer, and worse—they will feel powerless to change it, at least for now. Without genuine levers of participation in governance, there really is some bliss to be had in ignorance.

Their lost environmental innocence is cause for grief, especially when it brings pain without obvious remedy. As midwife for this loss, I share in that grief. But I also cherish the hope that it will one day be a reason for celebration, when—thanks to their generation’s rising consciousness—the air no longer stings. If nothing else, I hope that my students will have that much more fire in their bellies, as their bellies are increasingly well-fed, to protect the next generation more effectively. And on that front, knowing even this small sample of Chinese young people fills me with confidence.

The European Union is steadfast in its commitment to reduce emissions by reducing reliance on traditional fossil fuels. To date it has taken several measures, each of which promises to change the paradigm of energy policy and politics. I have highlighted some recent actions below.

1. An EU law, the legality of which has been confirmed by the Advocate General, imposes a carbon tax on aviation, including international airlines, as part of EU’s Emissions Trading Scheme (EU ETS). China has retaliated by introducing legislation banning airlines from imposing a carbon tax. Several countries, including the United States, reportedly, support China’s position and may follow suit in introducing their own measures against the airline tax.

2. EU’s proposed sanctions against Iran. In response, Iran has suspended export of crude to French and United Kingdom and has threatened to suspend supply to several other European nations. It is simultaneously negotiating a contract to increase export of crude to China, as reported here. According to reports, France and the United Kingdom are not concerned. Not only do they claim to have sufficient reserves, but also the two countries recently inked a new civil nuclear energy pact as part of their energy cooperation efforts.

3. Another proposed action aims to include tar sands oil within EU’s Fuel Quality Directive (FQD), which was passed by the EU as part of its climate and energy strategy in 2008 and which requires suppliers of oil and gas fuel to the transport sector to reduce their emissions by 10% by 2020, as explained here. Based on a report that the extraction from tar sands is highly polluting because of high CO2 emissions, the European Commission has voted to include oil from the tar sands in the FQD. Even though Canada does not import oil to the EU, it fears that the inclusion can have indirect repercussions on its tar sands industry, as reported here. Pending vote by individual European nations, Canada is reportedly threatening to file a complaint before the World Trade Organization if the tar sand oil is included in the FQD.

Despite objections from different groups, EU’s measures may eventually have a larger impact on the energy landscape. In its attempt to help create a robust carbon market, it may eventually provide much desired incentive to invest in emissions reduction measure. That is, of course, unless nations who are not Party to the Kyoto Protocol or who have withdrawn from the next commitment period, notably China and Canada respectively, cooperate. Either way, it is worth watching Europe maneuver the energy market and the response of countries affected. What is emerging is a patchwork of subtle legal challenges that can nevertheless change the landscape of global energy production, supply, and consumption, as well as the future prospects of negotiating a meaningful climate treaty.

I’m delighted to be joining the Environmental Law Prof Blog as a contributing editor. This year, I’ll be blogging about my environmental experiences in China, where I’m spending 2011-12 as a Fulbright Scholar and Visiting Professor at Zhongguo Haiyang Daxue (Ocean University of China). I am teaching a full schedule of American law courses while researching Chinese environmental governance, joined by my husband, 4-year old son, and 73-year-old mother. In our small two-bedroom apartment, we live like a typical Chinese family, with three generations and an only child.

To be sure, the living is not always easy—but perhaps our most important lesson of all will be to learn what it means to downsize from American consumption levels and live a little more like the rest of the world. (And this is a sobering lesson indeed.)

In light of our rich reservoir of experience here, my blogging will be less academic and more experiential—less about the fact that Beijing will finally begin monitoring air pollution at the 2.5 micron level, and more about how life changes when you are immersed in those particulates day after day. (For more academic reporting, see the excellent Chinese blog, China Environmental Law.) To summarize the overall sentiment of the series, anyone complaining about excessive environmental regulation in the U.S. really ought to spend a year living in China.

Better still, they should bring their young children or aging parents.

This first post provides some context for my series of through-the-looking-glass observations about what it’s like to plunge into China’s modern industrial revolution as an American environmental law professor. No amount of legal research could have prepared me for the differences in environmental perspective that I would encounter here (and even my undergraduate degree in Chinese language and culture falls short). So I hope that sharing these stories will help illuminate some of the cultural gaps we will inevitably encounter as Chinese and American partners work together to solve our global environmental challenges.

I thought I'd start by explaining a little bit about where many of these stories come from. We are fortunate to be living in the beautiful city of Qingdao, Shandong Province, which is on the coast of northeastern China across the Yellow Sea from South Korea. Qingdao is home to about seven million people—a small (!) city by Chinese standards. It is a wonderful place of disarmingly friendly people, complete with weather-worn mountains overlooking a peaceful sea. Home to several of China’s biggest brands and among the ten busiest commercial shipping ports in the world, Qingdao has won several awards for green development. And yes, it is where the famous Chinese beer comes from (“Tsingtao” is just a different Romanization for “Qingdao”!)

Ocean University is one of China's key comprehensive universities under the direct supervision of the Ministry of Education. It has about 30,000 students and faculty and ranks among the top 10% of universities nationwide. The law school has an especially dynamic environmental program, offering master's and doctoral degrees and hosting seven research institutes addressing marine law, coastal zone management, sustainable development, and other important topics. (Of note, the Law School is currently inviting applications from both students and faculty for some very intriguing programs of exchange--about which I've posted separately here.)

The Dean and faculty have been extremely welcoming, and the students are delightful. Teaching them is especially gratifying because they are so hungry for the kind of engaged and participatory teaching that we regularly use in American law schools. Most of them have never before been asked what they themselves think, or to work all the way through a doctrinal problem, or to question their instructors. It is truly a privilege to be part of this cross-cultural exchange, and I will always be grateful to both the China Fulbright Program and my hosts here at Ocean University for the opportunity.

Nevertheless, the challenges of living here—specifically, the environmental challenges—can be harrowing. In the next few months, I’ll blog about the experiences of living without clean air, potable water, or faith that products in the marketplace won’t make us sick. I'll write about the many ways that established environmental problems foster newer ones, like the consequences of poor public water quality on the ever-increasing stream of waste products to cope with it. I'll write about our palpable homesickness for the kind of government oversight we take for granted to protect us in circumstances ranging from pharmaceutical to pedestrian safety. (For all the chest-thumping in some American circles about the perils of socialism, China is a Tea Partier's dream in many respects—as far away from the Nanny State as most would ever wish to venture.)

Yet I’ll also write about the environmental realms in which the Chinese put Americans to shame—for example, the amazing public transportation system in cities like ours, which can be navigated cheaply and conveniently by bus at all hours (and has a subway system in the making). Or the full-scale embrace of alternative sources of energy, with a solar water heater on every roof. Or the national government’s commitment to price carbon on at least some level--a part of the new Five Year Plan beginning experimentation in seven cities. Or the general willingness among most Chinese to make personal sacrifices for the greater good.

But since this is a blog and not a novel, I'll save my first tale for the next post--a story about how Colorado's Rocky Mountain Arsenal led to surprising insights among my Natural Resources Law students about their own experiences in China. Stay tuned!

There are enough conferences every year that, if one attended them all, no other work would get done. That said, there is a particularly well put together conference coming up on Thursday, February 9. Electric Power in a Carbon Constrained World will feature some of the leading energy and environmental law scholars today. It is organized around four panels:

The Wallace Stegner Center for Land, Resources, and the Environment at the University of Utah S.J. Quinney College of Law has posted a job opening for a new alternative dispute resolution program focused on environmental, natural resources, and energy issues. The position is for the director of the program.

Here is the announcement. Note the link at the end for online applications:

The Wallace Stegner Center for Land, Resources and the Environment at the University of Utah S.J. Quinney College of Law is establishing a new Alternative Dispute Resolution (ADR) program focused on environmental, public lands, and natural resource issues and is currently accepting applications for the ADR Program Director. The Director will play a major role in initiating, designing, and developing the new ADR program. Specific responsibilities include identifying issues of local, regional, and national importance and proactively investigating ADR opportunities; public education about the benefits of mediation, collaboration, and other ADR options; providing ADR services to government agencies, corporations, environmental organizations, and other entities; fundraising to support the program; and research on ADR processes and opportunities. Requirements include a Juris Doctor or equivalent degree, along with a minimum of five (5) years of experience in alternative dispute resolution. Experience with environmental, natural resources, or energy law and policy, and especially experience with these issues in the western United States, is strongly preferred. For additional information and to apply, please go to http://utah.peopleadmin.com/postings/11104.

"Tea Party members are much more likely to say that they are 'very well informed' about global warming than the other groups. Likewise, they are also much more likely to say they 'do not need any more information' about global warming to make up their mind."

Certainly being a specialist in an area does not always make one correct, but reading reports and keeping up with the science of climate change is part of what many of us do for a living. For me personally that is a task separate and apart from my politics, as there is plenty on both sides of the political spectrum with which I both agree and do not agree. So while I have to rely on the understanding and processes of the scientists engaged in the research, due to my woeful scientific incompetence (I am not, after all, a climate scientist), I can still be somewhat sure from my review of the materials that 95% of scientists truly do maintain a consensus position on the human contribution to climate change, ocean acidification, etc. Yet I have seen the mindset reflected in the poll when discussing the science of climate change, where I can throw paper after paper and report after report at someone and within minutes they are responding that it just cannot be true, that the debate is still open, etc. Speed readers? I don't think so.

It reminds me of the Dunning-Kruger effect, but before I get into that let me make very clear that what I am discussing is a derivation of the actual effect. The actual effect is seen across all segments of society regardless of political affiliation, and involves less capable people overestimating their abilities while those more capable underestimate their own abilities relative to others. But I wonder how this combines with political affiliation to cause people to purposefully put themselves in a position of being "less capable." By that I mean is there a bias toward not believing in climate change that is ideological, but that causes those people to exhibit some Dunning-Kruger-esque view that they are "very well informed" about global warming - more-so than folks who actually trust the science - and that they "do not need any more information"? This is certainly not an argument on my part that members of the Tea Party are less "capable" from an intellectual perspective. I have many, many extremely capable acquaintances who sympathize with the concerns of the Tea Party, but who simply aren't interested in digging deeper than Fox News to find the facts about climate change. Rather, it is that Tea Partiers seem to choose to put themselves into a position where their capability to understand and accept the science is compromised by their political views - they don't even want to track down the data and study it closely because if they do it might demonstrate something incongruous with their political viewpoints. Until one reads the reports and makes an effort to understand the science, that person is "unskilled" in the sense that Dunning-Kruger posits, and is prone to overestimate his or her skill in assessing the "truth" of climate change - just as unskilled as I am at performing surgery or engineering the construction of a building.

There are many with a cursory understanding who believe they're discovered fundamental flaws in climate science that have somehow been overlooked or ignored by climate scientists. Some take this a step further and believe they're being deceived . . .

Cook provides the following example:

In the discussion on whether CO2 is a pollutant, a graph was included to show CO2 levels over the last 10,000 years. The graph includes ice core data for CO2 levels before 1950. For values after 1950, direct measurements from Mauna Loa, Hawaii were used.

A comment was posted querying the data in this graph. Here is the comment in full:

"Whoa, hold on a minute here. CO2 readings from ONE LOCATION prove we have an enormous GLOBAL spike in CO2 levels? You've got to be kidding me. This is science? That would be like me taking hydrological readings at the bottom of Lake Superior and then declaring that the entire surface of the earth must be covered with water based on my readings.

By the way, isn't Mauna Loa an active shield volcano? (http://en.wikipedia.org/wiki/Mauna_Loa) Hmmmm, you don't suppose that's where all that extra CO2 came from, do you? C'mon, people, wake up. I find it shameful that this obvious manipulation is allowed to pass as "proof". This is certainly NOT an unbiased scientific conclusion."

The commenter is asking whether it's appropriate to take CO2 readings from one location. Particularly when situated near a volcano which are known to emit CO2. Surely a better metric would be a global average of CO2 levels? These are legitimate questions. However, I deleted this comment as our Comments Policy allows no accusations of deception, whether the attack is directed towards skeptics, scientists or myself. This restriction is necessary to keep discussion constructive and restricted to science. Unfortunately, the comment began with a commendable question and ended with a not-so-commendable personal attack.

If the comment had stayed on methods and not strayed into motive, I would have posted the following response. Mauna Loa was used is because its the longest, continuous series of directly measured atmospheric CO2. The reason why it's acceptable to use Mauna Loa as a proxy for global CO2 levels is because CO2 mixes well throughout the atmosphere. Consequently, the trend in Mauna Loa CO2 (1.64 ppm per year) is statistically indistinguishable from the trend in global CO2 levels (1.66 ppm per year). If I used global CO2 in Figure 1 above, the result "hockey stick" shape would be identical.

Unfortunately, this type of presumptive misunderstanding is seen all too often. Someone doesn't understand a certain aspect of climate science which is understandable considering the complexities of our climate. Rather than investigate further, they assume a flaw in the climate science or worse, an act of deception. This response is often more a reflection of the gap in their own understanding than any flaw in the climate science.

Perhaps most interesting when considering the Dunning-Kruger effect is that cross-cultural comparisons have demonstrated that Americans may be more prone to the effect than other cultures. If so, perhaps it is not surprising that American acknowledgement of the threat of climate change trails almost the entire rest of the world: "People nearly everywhere, including majorities in developed Asia and Latin America, are more likely to attribute global warming to human activities rather than natural causes. The U.S. is the exception, with nearly half (47%) -- and the largest percentage in the world -- attributing global warming to natural causes. Americans are also among the least likely to link global warming to human causes, setting them apart from the rest of the developed world."

Ultimately, I wonder if the Tea Party suffers from a politics-induced version of the Dunning-Kruger effect, and simply does not want to dig deeper. Actually, maybe they do want to dig deeper, but only so they can continue to bury their head in the sand.

* Although most of the 9 million people who lost power due to Hurricane / Tropical Storm Irene have had their electricity restored, utilities have gone on the defensive, launching PR campaigns in the face of likely investigations from regulators.

* Tropical Storm Lee has forced evacuation of over a third of oil and gas production platforms and drilling rigs in the Gulf of Mexico.

* Japan has adopted a feed-in tariff that will take effect next year and seeks to incent 30,000 MW of new renewables installations in the next decade.

If you haven't seen it yet, the Obama administration announced today that it will not implement the more aggressive ozone regulations that EPA had proposed. In his statement on the matter, President Obama alluded to the economy and then cited the fact that the proposed standards would be revisited in two years as the reason for his decision:

I have continued to underscore the importance of reducing regulatory burdens and regulatory uncertainty, particularly as our economy continues to recover. With that in mind, and after careful consideration, I have requested that Administrator Jackson withdraw the draft Ozone National Ambient Air Quality Standards at this time. Work is already underway to update a 2006 review of the science that will result in the reconsideration of the ozone standard in 2013. Ultimately, I did not support asking state and local governments to begin implementing a new standard that will soon be reconsidered.

This decision is interesting for a number of reasons. Politically, it shows both how dominant the economy continues to be and also how much the country has shifted to the right since 2008. Whether one sides with them or not, the Tea Party's anti-regulation message clearly has resonance. Many already see this decision as bowing to oil and other interests who had blasted the proposed regulations.

The decision also shows Obama's cold calculus about who will and will not be on his side in the next election. Environmentalists already have decried this move. But will they vote for him anyway in 2012? The President appears willing to make that gamble, despite continued disappointment within the community over the administration's failure to make many of the environmental achievements the campaign promised.

And, interesting indeed, the decision may reflect a shift in the way the administration is messaging environmental concerns. In the last election, Obama -- wisely, many would contend -- was careful to link job growth with environmental protection. The two go hand in hand. This decision, however, falls into the old trap of seeing the economy and the environment as binary choices, when ultimately the two are intrinsically interlinked on a long-term basis. True sustainability requires both. Is this change a permanent shift or a temporary slide? Only time will tell.

The other night I made my hourly (it seems) trip out to the garage to get some scholarly clarity....ah-hem....Pepsi Max or some other equally caffeinated drink (why are my teeth so sensitive, by the way?). See, in my benevolence and high-minded environmental consciousness (please note sarcasm) I decided to keep the previous homeowner's prehistoric refrigerator, seen to the right (literally, Neanderthals kept frozen dinosaur meat in this thing). It not only makes a great home for my summer stipend....er...caffeinated go-juice....but it also preserves the functionality of a still-working appliance and keeps it from unnecessarily entering the waste stream (why do we always feel we need "new" stuff anyway?). Forget the fact that I don't need two refrigerators, the amount of extra electricity it consumes....look, just leave me alone. Anyway, nothing brings the high and mighty environmentally unassailable down like reaching into the refrigerator for a Pepsi Max, only to discover that YOU - and YOU alone - are responsible for the Montreal Protocol. YOU kept the international community tied up with trying to fix the ozone layer during much of the 80's, rather than focusing on more important things like the harm caused to children by slap bracelets, or the amount of carbon fiber sequestered by Hammer pants, or [insert next cliche 80's joke here]. Alas, when I looked into the refrigerator, this is what I saw:

My heart sunk. No longer were CFC's a ghost of my youth or something "over there" in the less environmentally conscious developing world (sarcasm, again), but they were right there in my own d@!%, Bluebookin' garage. I was single-handedly harming public health and the environment by destroying the upper atmosphere. I felt like a villain in a Superman movie, and just knew he was going to swoop down, fly around the earth 100 times-a-minute to take us to a future where this evil dump truck of an appliance had finally blown a fuse. Or perhaps an upgraded "Refrigerterminator" would come BACK in time and eliminate the GE-1000 to save us all from a future ozone apocalypse.

In all seriousness - to the extent that this post can be serious - it did raise in my mind the issue of lag time on policies aimed at improving the environment. It is easy to wax poetic to students about how "we need to transition fast to energy star appliances....more fuel efficient vehicles..." and on and on. Even when the prices are competitive with less environmentally friendly products, this simply isn't always so easy. It's also not clear that when pitted against the problems of consumption it is always so desirable. I spend a lot of time thinking about how we need to buy less stuff and use what we have longer so that we can lower our consumption rates, which would require 5 earths to sustain if the U.S. per capita rate of consumption went worldwide. Yet buying a bunch of new stuff and discarding perfectly useable stuff is exactly what I promote when it comes to innovative new products that are better for the environment.

The highlight of my law school career was having my 1994 Ford Ranger pick-up truck (I am from Alabama, after all) stolen right off the street. Of the 250 (seriously) cars stolen in Durham that month (no joke), I am certain this had to be the theft that generated the greatest ridicule for this thief by his professional colleagues. Why would anyone besides a broke law student want a 1994 Ford Ranger? Well, first it was paid for, and a second it still worked. When the thief finally had a moment of lucidity, a month later (who waits a MONTH before deciding a 1994 Ford Ranger is not the vehicle for them!?.....ahhh, besides me that is?), he graciously deposited my vehicle behind a crack house. I paid my $500 to the wrecker company to get it back (it's Blue Book value [Kelley Blue Book, that is] was $900 - thank goodness I didn't file an insurance claim), and guess what....I still drive it today. I'll be Bluebooked if I'm getting rid of it till it croaks, nevermind it's gas mileage is about 20 mpg's these days. As for the fossil of a refrigerator sitting in my garage, I'm still on the fence. Do I send it to the trash heap, for my kids to figure out what to do with it, or keep it and have them simply apply stronger SPF? Tough call.

Picking up on Prof. McAllister's post Tuesday about top environmental law films, one recent movie should not be missed. Strikingly shot, beautifully conceived, Into Eternity traces the story of the construction of Onkalo, Finland's version of the United States' Yucca Mountain: a deep-beneath-the-earth, labyrinthine permanent repository for high-level nuclear waste.

The film is as much art as it is documentary, but at its core its mission is to ask the hardest questions there are about spent nuclear fuel: How is it that we continue to rely so heavily on nuclear power when no one has yet to find a politically palatable solution for the waste? How can humans conceive of, much less maintain, a structure that will last 100,000 years when nothing we have ever built has lasted even a fraction of that time? What are our obligations to future generations, whether from a theological or humanistic perspective, in terms of the planet that we all share? If power storage is likely to become electricity's "killer app," Into Eternity seems to be asking, is nuclear waste its "zombie app"? Is nuclear waste likely to come back years from now, undead-like, once gone but now resurrected, to haunt humankind and the planet on which we live?

The film is at its best when it asks these questions in its uniquely creative ways. Filmmaker Michael Madsen puts his own, indelible imprint on the long-debated issue of nuclear waste. Whether pointing out that "merely" 5,000 years later we hardly understand what the Egyptians were doing with their pyramids; asking if Edvard Munch's The Scream would be an effective, universal warning sign for Onkalo millennia or even centuries from now; showing the contrast between Onkalo's dark, underground tunnels and the gorgeous winter white forests they lie beneath, the film drives home both the difficulty of the task and the contrast between nature and the high-tech civilization we have erected.

Still, Into Eternity is rather one-sided. It zeroes in only on the problems of nuclear waste without highlighting the many benefits we garner from nuclear power. It emphasizes the temporal length of the waste's risk without discussing the likelihood. It, quite intentionally, elicits emotion, particularly fear, without exploring the social, economic, and political dimensions of the dilemma. True, the Scandinavian experts who are interviewed throughout the film are excellent, but they are used more as ornamentation to spotlight Onkalo's mind-boggling complexity than they are to explore it.

In the end, the choice of how to portray Onkalo is the artist's prerogative. Art, at its core, is all about perspective.

The vision of nuclear waste offered here may be a somewhat jaundiced one, but it is no less sobering -- or worthwhile -- for the wear.

As hydraulic fracturing for natural gas continues to attract media attention, I thought that this would be a good time to review several of the major statutory exemptions enjoyed by oil and gas companies. The most substantial exemption, in my view, is the EPA's determination in 1988 that oil and gas exploration and production or "E&P" wastes should not be regulated under Subtitle C of the Resource Conservation and Recovery Act. When Congress enacted RCRA in 1976, the Act contained no oil and gas exemption. Congress eventually directed the EPA to study, though, whether certain oil and gas wastes should be regulated under Subtitle C or not, and after some foot-dragging and a lawsuit, the agency determined that the wastes--although some of them were hazardous--should be exempted. Specifically, the EPA's 1988 study, located at 53 Fed. Reg. 25,446, concluded that "23 percent of the statistically weighted sample sites generating produced water contain one or more of the toxic constituents of concern at levels greater than 100 times the health-based standards." More generally, the EPA found that between ten and seventy percent of the oil and gas wastes sampled (the percentages varied by type of waste) "could potentially exhibit RCRA hazardous waste characteristics." The EPA concluded, though, that imposing corrective action requirements, including on-site management of the wastes under RCRA, would result in "significant costs to the industry" and that "most existing State regulations are generally adequate for protecting human health and the environment."

The EPA conducted its RCRA exemption study before high-volume "slickwater" hydraulic fracturing in shales had fully emerged. Gas operators in the Barnett Shale did not perfect the slickwater technique, which uses large quantities of water mixed with smaller quantities of chemicals, until the late 1990s, so the EPA has never directly studied whether the several million gallons of fracture solution injected into a well--some of which flow back up and must be disposed of--have hazardous characteristics and might merit a reconsideration of the RCRA Subtitle C exemption. In light of this concern, the Natural Resources Defense Council submitted a rulemaking petition to the EPA in 2010, requesting that the EPA reconsider the 1988 RCRA exemption for oil and gas exploration and production wastes.

Another interesting aspect of the RCRA exemption is its reliance, to some extent, on non-mandatory guidelines that are intended to improve state regulations. Because the EPA recognized that some oil and gas exploration and production wastes were hazardous when it exempted them from RCRA Subtitle C regulation, the agency noted that some gaps in state regulation needed to be filled. As a solution, the agency gave money to the Interstate Oil and Gas Compact Commission to review state regulations, and the IOGCC formed something called the State Review of Oil & Natural Gas Environmental Regulations, Inc., or "STRONGER." STRONGER brings together representatives from industry, state environmental agencies, and environmental groups to review the efficacy of state oil and gas regulations, but STRONGER is of course not a regulatory agency. After reviewing the adequacy of regulations--including recent reviews specific to hydraulic fracturing--STRONGER develops non-mandatory "guidelines" for better state laws. In evaluating whether the RCRA exemption is a good idea, we should therefore look both to the data and assumptions behind the EPA's 1988 exemption decision and to its assumption about how states would improve their laws by, for example, following STRONGER recommendations.

A second important oil and gas exemption in federal environmental law is the exemption of uncontaminated sediments from oil and gas construction sites from National Pollutant Discharge Elimination System stormwater permitting requirements. The EPA has a useful website that summarizes several aspects of this exemption, including: its original text; Congress's attempt to expand the exemption to most oil and gas construction, exploration, and production activities in the Energy Policy Act of 2005; and subsequent litigation that has somewhat narrowed this attempted expansion.

Third, oil and gas operators do not need to prepare annual toxic chemical release forms under the Emergency Planning and Community Right-to-Know Act. (42 U.S.C. 11023 describes the Standard Industrial Classification codes to which the reporting requirement applies, and oil and gas drilling do not appear to fall within the SIC codes covered.) Oil and gas operators must keep material safety data sheets on site under Section 311 of EPCRA, however, and must provide the MSDS to local emergency planning committees upon request. EPCRA specifically allows the operators to claim trade secret status for chemicals when providing MSDS to local emergency planning committees.

Finally, the process of fracturing itself is not regulated under the Safe Drinking Water Act. The EPA had long maintained that hydraulic fracturing did not count as "underground injection" under the Safe Drinking Water Act--a position that the Legal Environmental Assistance Foundation successfully challenged in Alabama--and Congress formally affirmed the EPA's position in the Energy Policy of Act of 2005, in which Congress declared that hydraulic fracturing (unless the fracturing used diesel fuel) did not fall under the SDWA definition of underground injection. This exemption means that oil and gas operators need not obtain a permit for an underground injection control (UIC) well prior to fracturing. Interestingly, a report recently released by Representatives Waxman, Markey, and DeGette concludes that some of the major fracturing companies injected approximately thirty million gallons of diesel fuel "or hydraulic fracturing fluids containing diesel fuel" into fractured wells between 2005 and 2009. It is not clear whether these companies obtained a UIC permit for this fracturing. The report that reveals the use of diesel fuel is also interesting because several of the major fracturing companies signed a memorandum of agreement with the EPA in 2003 stating that they would not use diesel fuel in fracturing. (The memorandum is no longer available online, but the EPA's press release about the memo is still available.)

In sum, oil and gas companies operate under several substantial exemptions from federal environmental laws. As the Ground Water Protection Council likes to point out, many other federal laws still apply. A company wanting to discharge wastes into a river, for example, must obtain an NPDES permit under the Clean Water Act. Oil and gas companies also must comply with the Endangered Species Act and OSHA regulations, among many other federal laws. But the exemptions should not be ignored, particularly as states, and groups of state regulators such as the Ground Water Protection Council, argue that state regulations adequately control hydraulic fracturing risks. If we continue to rely substantially on states to control the risks, we should ensure that state regulations are sufficiently robust.

During yesterday’s oral argument of AEP v. Connecticut, it seems that things did not go so well for the states attempting to address climate change through public nuisance litigation, see for example here, here, here, and here as representative of typical prognostications of the argument. Because those reading the tea leaves seem to agree the states will lose, the main question up for grabs is how they will go down.

Earlier today, Richard Frank posted a very thoughtful post on this subject. According to Professor Frank, the states will likely lose on the grounds that the Clean Air Act displaces the ability of litigants to bring public nuisance suits arising from greenhouse gas emissions because they are covered by the Act. This is certainly the gist, for example, of the now familiar Justice Ginsburg barb: “Congress told EPA to set the standards [in the Clean Air Act]. You are setting up a District judge as a kind of ‘super EPA.’”

I agree with Prfoessor Frank. However, if this is how the case is resolved, it is interesting to speculate whether or not congressional attempts to strip EPA of its power to regulate greenhouse gases under the Clean Air Act, if indeed successful, would reopen the door for public nuisance claims. In other words, by displacing the Clean Air Act’s ability to regulate greenhouse gases would Congress also displace a litigant’s ability to argue that the Clean Air Act displaces such public nuisance claims?

Indeed, as the attorneys and the Justices have prepped for AEP’s oral argument over the past few weeks, the news has been filled with the unfolding saga of many of those in Congress attempting to eliminate or cutback the Clean Air Act’s reach to regulate greenhouse gases.

Additionally, as the Justices work into the summer attempting to hammer out an opinion in this case, it also seems likely that further efforts to eliminate or cut back the EPA’s power in this area will continue. In fact, on the heels of the most recent attempt to make EPA’s regulation the ransom necessary to avoid a shutdown of the federal government, Speaker Boehner told us this will not be the last attempt to go after EPA’s regulatory powers. Looking forward, it seems that the question of raising the country’s debt ceiling, which is probably going to be debated within the next few weeks, is a very likely flashpoint in this ongoing congressional battle.

As disturbing as it might be if litigants like those in AEP v. Connecticut ask a district court to act like a Super EPA, one has to question what happens if EPA is forced to act as a Miniature EPA or stripped of its power to act like EPA at all.

In a 50-50 vote, the Senate today rejected the Energy Tax Prevention Act. (A tiebreaking vote was not cast because the vote that took place related to cloture—which requires 60 votes.) As a comic side note, it is worth knowing that House member Rep. Gerry Connolly (D-VA) suggested that the bill be renamed the “Koch Brothers Appreciation Act” or “Protecting Americans from Polar Bears Act.” Regardless of what one calls the bill, however, had it become law, the bill would have stripped away a substantial chunk of the EPA’s power to use the Clean Air Act to address climate change. While the bill would have preserved the more stringent mobile emission standards put in place to address greenhouse gases, it would have put an end to other regulations under the Act, particularly the regulations associated with major stationary sources. While the House is almost certain to pass the bill later today and while President Obama would have been likely to veto the bill had it made it to his desk, all of this doesn’t matter much given its death in the Senate.

(For those following the legislative process closely, note that the Senate also decisively rejected a number of other amendments, including amendment 215 proposed by Senator Rockefeller, amendment 236 by Senator Baucus, and amendment 265 by Debbie Stabenow.)

Despite the fact that that the Senate rejected the bill, it should not come as a surprise to anybody that Congress is rethinking EPA regulations. And, this is not just because many in Congress oppose addressing climate change (though that is true). In fact, it was not all that long ago that many of the present defenders of the EPA’s greenhouse gas regulations assumed that Congress would and should preempt these regulations. The major difference being that at the time, these same advocates assumed that we would not only dump these regulations but also replace them with some other form of regulation, most likely a cap-and-trade. For example, consider the following response to a question that Administrator Lisa Jackson received at a press conference held at the White House on the day that the Obama administration announced its intention to regulate light-duty vehicles many months ago:

Q: If Congress doesn't come through, though, on some sort of climate legislation, would you be ready to pull the trigger using the Clean Air Act with some of the work that you’re doing right now?

ADMINISTRATOR JACKSON: I have said before that I actually hope that doesn’t come to pass. I believe very strongly that legislation is the preferable route. It allows for a comprehensive economy-wide discussion of the issues that are going to make for a successful program. That being said, the Clean Air Act is a strong and extraordinarily successful piece of legislation. It has made huge differences in air quality in our country.

And we have an obligation under the law, based on the Supreme Court ruling, to continue to do our job. And that is what we will do. I have also said that I believe strongly that that job can be done in a way that's, step one, that's reasonable, that complies with all administrative processes.

It is uncertain whether, as some have argued, the EPA actually used the Clean Air Act to force Congress into addressing climate change back in the days when Democrats controlled both chambers. Regardless, the EPA is living with the reality that its endangerment finding and regulation of greenhouse gases under the Clean Air Act have come at a political cost. While the EPA is not likely to have its statutory authority clipped by our present Congress, the EPA is not out of the woods. It seems quite likely that it will still face a substantial budget cut or—at the very least—have to live with the burdens that go along with a mobilized opposition both inside and outside the halls of Congress.

-- Brigham Daniels

Update: The House indeeded passed the Energy Tax Prevention Act passed by a 255-172 vote. However, because the same bill died in the Senate, it is largely a symbolic gesture at this point.

Similar to Professor McAllister's approach to nuclear energy in the classroom, I typically tell students in my energy and environmental law classes that there is no silver bullet in energy and that a range of fuel sources is necessary to satisfy the world's ever expanding demand for energy. As the tragedy in Japan unfolds, a host of "energy portfolio" questions will continue to emerge. Should nuclear energy continue to supply about nine percent of America's primary energy needs (and approximately twenty percent of U.S. electricity production, as Professor Davies observes below)? What are the alternatives? How dangerous are fossil fuels as compared to nuclear energy?

No matter the answer to these difficult questions, it is still clear that there is no silver bullet. If we move away from nuclear, the alternatives also pose substantial concerns. This week, for example, the EPA highlighted the dangers of coal in proposing national standards on toxic emissions from coal-fired power plants (in response to a court order). In announcing the standards, Administrator Jackson emphasized the devastating health effects of coal, such as asthma and nervous system damage in the young. The EPA estimates that the health and economic benefits from these new standards will be $140 billion annually and that the standards will prevent as many as 17,000 premature deaths and 11,000 heart attacks annually.

Natural gas, which is often touted as the clean alternative to coal, other fossil fuels, and nuclear, also has risks, as highlighted in my last post. In addition to concerns about chemicals and radioactivity levels in wastewater from hydraulically fractured wells, explosions of natural gas pipelines -- some deadly, and others not -- in Minneapolis, Allentown, and San Bruno remind us that no energy option is perfect.

To end on a point of optimism, however, it is encouraging to see the continued, albeit slow, expansion of renewable energy in the United States. As the Energy Information Administration observes, "Wind power has been the fastest-growing source of new electric power generation for several years," and U.S. shipments of photovoltaic cells and modules skyrocketed in 2009. Like any other energy source, renewables will not solve all of our problems, but they are a highly promising energy option. Building from the observations about energy planning in the post by Professor Davies below and Professor McAllister's points about energy efficiency, let's hope that as Americans mourn Japan's tragedy and reflect on our own energy options, we will be creative in contemplating an improved global energy future.